Page images
PDF
EPUB

(iii) The name, title, and address of the appellate authority. (44 FR 54478, Sept. 20, 1979, as amended at 48 FR 15895, Apr. 13, 1983. Redesignated at 52 FR 12161, Apr. 15, 1987)

PART 16-IMPLEMENTATION OF THE

PRIVACY ACT OF 1974

unwar

Sec. 16.1 Purpose and statement of policy. 16.2 Definitions. 16.3 Procedures for inquiries. 16.4 Requests for access; requirements. 16.5 Disclosure of requested information to

individuals. 16.6 Initial denial of access. 16.7 Administrative review of initial denial

of access. 16.8 Request for correction or amendment

to record. 16.9 Agency procedures upon request for

correction or amendment of record. 16.10 Appeal of initial adverse agency deter

mination on correction or amendment. 16.11 Disclosure of record to person other

than the individual to whom it pertains. 16.12 Fees. 16.13 Penalties. 16.14 General exemptions. 16.15 Specific exemptions.

AUTHORITY: 5 U.S.C. 662(a); 42 U.S.C. 3535(d).

SOURCE: 40 FR 39729, Aug. 28, 1975, unless otherwise noted.

racy, relevancy, timeliness and completeness as is reasonably necessary to assure fairness in determinations made by the Department about the individual, to obtain information from the individual to the extent practicable, and to take every reasonable step to protect that information from ranted disclosure. The Department will maintain no record describing how an individual exercises rights guaranteed by the First Amendment unless expressly authorized by statute or by the individual about whom the record is maintained or unless pertinent to and within the scope of an authorized law enforcement activity.

(c) This part applies to all organizational components in the Department in order to assure the maximum amount of uniformity and consistency within the Department in its implementation of the Act.

(d) The Assistant Secretary for Administration shall be responsible for carrying out the requirements of this part, for issuing such orders and directives internal to the Department as are necessary for full compliance with the Act, and for effecting publication of all required notices concerning systems of records.

(e) Requests involving information pertaining to an individual which is in a record or file but not within the scope of a System of Records Notice published in the FEDERAL REGISTER are outside the scope of this part. Requests for departmental records will be considered to determine whether processing under this part, part 15, or both is most appropriate, notwithstanding the requester's characterization of the request, as follows:

(1) A Privacy Act request from an individual for records about that individual and not contained in a Privacy Act Records System shall be considered a Freedom of Information Act request and processed under HUD Freedom of Information Act regulations (24 CFR part 15) to the extent that the requester has provided the Department a reasonable description of the documents requested. When a request for records is so considered as a Freedom of Information Act request, the Privacy Act Officer shall promptly refer it

$16.1 Purpose and statement of policy.

(a) The purpose of this part is to establish policies and procedures for implementing the Privacy Act of 1974 (Pub. L. 93-579), 5 U.S.C. 552(a). The main objectives are to facilitate full exercise of rights conferred on individuals under the Act and to insure the protection of privacy as to individuals about whom the Department maintains records in systems of records under the Act. The Department accepts the responsibility to act promptly and in accordance with the Act upon receipt of any inquiry, request or appeal from a citizen of the United States or an alien lawfully admitted for permanent residence into the United States, regardless of the age of the individual.

(b) Further, the Department accepts the obligations to maintain only such information on individuals as is relevant and necessary to the performance of its lawful functions, to maintain that information with such accu

outside the scope of this part. If the request satisfies the Freedom of Information Act requirement that requested records be reasonably described, the Privacy Act Officer shall consider the requests as a Freedom of Information Act request and shall proceed as in $ 16.1(e)(1) of this section.

(40 FR 39729, Aug. 28, 1975, as amended at 41 FR 13917, Apr. 1, 1976)

to the head of the appropriate organizational unit in accordance with HUD FOIA Regulations and shall advise the requester that time of receipt for processing purposes will be the time when it is received by the appropriate official.

(2) A Freedom of Information Act request from an individual for records about that individual contained in a Privacy Act Records System shall be processed as follows:

(i) If the request in whole or in part contains a reasonable description of any HUD document, processing shall be carried out pursuant to HUD FOIA Regulations.

(ii) If the request in whole or in part does not contain a reasonable description of any HUD document, but does provide sufficient information under HUD Privacy Act Regulations to undertake a Privacy Act Records System search, the Department will provide full access under HUD Privacy Act Regulations. In this situation, the Department will comply with the deadlines for response set forth in the Privacy Act and HUD implementing regulations. In that event, an explanation will be provided to the requester advising that the request did not contain a reasonable description of a particular document as required under the FOIA and offering to process the request under FOIA procedures upon receipt of additional information sufficient to constitute a reasonable description.

(3) A Freedom of Information Act request from an individual for records about another individual contained in a Privacy Act Records System shall be processed as follows: When an exemption under subsection (b) of FOIA is available, the Privacy Act governs the public interest determination under HUD FOIA Regulations (24 CFR 15.21) and compels the withholding of such documents unless: (i) The subject of those records consents to their release or (ii) disclosure comes within one of the subsections of 5 U.S.C. $ 552a(b).

(4) A Privacy Act request from an individual for records about another individual shall be processed as follows: Except as expressly permitted in this part, requests by persons who are not the subject of a record contained in a Privacy Act Records System shall be

8 16.2 Definitions.

(a) The definitions of 5 U.S.C. 552a apply in this part.

(b) As used in this part:

(1) Act means the Privacy Act of 1974, Pub. L. 93–579.

(2) Privacy Act Officer means those officials, identified in Appendix A to this part, or their designees, who are authorized to receive and act upon inquiries, requests for access, and requests for correction or amendment.

(3) Privacy Appeals Officer means the General Counsel.

(4) Inquiry means a request by an individual that the Department determine whether it has any record in a system of records which pertains to that individual.

(5) Request for access means a request by an individual or guardian to inspect and/or copy and/or obtain a copy of a record which is in a particular system of records and which pertains to that individual.

(6) Request for correction or amendment means the request by an individual or guardian that the Department change (either by correction, addition or deletion) a particular record in a system of records which pertains to that individual.

(7) Appeal means the request by an individual that an initial denial of a request for access or correction amendment by that individual be reviewed and reversed.

or

[40 FR 39729, Aug. 28, 1975, as amended at 41 FR 13917, A pr. 1, 1976; 61 FR 5204, Feb. 9, 1996)

$ 16.3 Procedures for inquiries.

(a) Any individual, regardless of age, may submit an inquiry to the Department. The inquiry should be made either in person at the office of, or by mail addressed to, the appropriate Privacy Act Officer. Although oral requests may be honored, a requester may be asked to submit his request in writing. The envelope containing the request and the letter itself should both clearly indicate that the subject is a “PRIVACY ACT INQUIRY”. If an individual believes the Department maintains a record pertaining to that individual but does not know which system of records might contain such a record and/or which organizational component of the Department maintains the system of records, assistance in person or by mail will be provided at the first address listed in Appendix A to this part.

(b)(1) An inquiry should contain the following information:

(i) Name, address and telephone number of the individual making the request;

(ii) Name, address and telephone number of the individual to whom the record pertains, if the requesting individual is either the parent of a minor or the legal guardian of the individual to whom the record pertains;

(iii) A certified or authenticated copy of documents establishing parentage or guardianship;

(iv) Whether the individual to whom the record pertains is a citizen of the United States or an alien lawfully admitted for permanent residence in to the United States;

(v) Name of the system of records, as published in the FEDERAL REGISTER;

(vi) Location of the system of records, as published in the FEDERAL REGISTER;

(vii) Such additional information as the individual knows will or believes might assist the Department in responding to the inquiry (for example, the individual's past or present relationship with the Department, e.g. mortgagor, contractor, employee, including relevant dates) and in verifying the individual's identity (for example, date of birth, place of birth, names of parents, place of work, dates of employment, position title, etc.);

(viii) Date of inquiry; and,

(ix) Individual's signature. The Department reserves the right to require compliance with the identifica

tion procedures appearing at $ 16.4(d) where circumstances warrant.

(2) In compliance with 5 U.S.C. 552a (e)(3) each individual supplying the information in accordance with paragraph (b)(1) of this section hereby is informed that:

(i) The authority authorizing solicitation of the information is 5 U.S.C. 552a, disclosure is voluntary, and no penalty is attached for failure to respond;

(ii) The principal purpose for which the information is intended to be used is processing the inquiry under the Act;

(iii) The routine uses which may be made of the information are the routine uses appearing as a prefatory statement to the Department’s notice of systems of records published in the FEDERAL REGISTER; and,

(iv) The effects of not providing all or any part of the information may delay, or in some cases make impossible, the Department's processing of the action on the request under the Act.

(3) If, having been made aware of the contents of paragraph (b)(2) of this section, an individual submits the information listed in paragraph (b)(1) of this section, he or she will be deemed to have made the submission on a purely voluntary and consentual basis.

(c) When an inquiry is misdirected by the requester, or not addressed as specified in paragraph (a) of this section, the Department official receiving same shall make reasonable effort to identify, and pr ptly refer it to, the appropriate Privacy Act Officer and the time of receipt for processing purposes will be the time when it is received by the Privacy Act Officer.

(d) When an inquiry fails to provide necessary information as set forth in paragraph (b) of this section, the requester shall be advised that the time of receipt for processing purposes will be the time when the additional necessary information is received by the Privacy Act Officer.

(e) Each inquiry received shall be acted upon promptly by the responsible Privacy Act Officer. Every effort will be made to respond within ten days (excluding Saturdays, Sundays and holidays) of the date of receipt. If a response cannot be made within ten days,

the Privacy Act Officer shall send an ment insurance book, employer's idenacknowledgement during that period tification card, national credit card providing information on the status of and professional, craft or union memthe inquiry. The Privacy Act Officer bership card); and may indicate that additional informa (iii) A document bearing neither the tion would facilitate processing or that

photograph nor the signature of the infurther information is necessary to

dividual (for example, a Medicaid card). process the inquiry.

In the event the individual can provide $ 16.4 Requests for access; require

no suitable documentation of identity, ments.

the Department will require a signed (a) Any individual, regardless of age,

statement asserting the individual's

identity and stipulating that the indimay submit to the Department a request for access to records of the De

vidual understands the penalty provipartment. The request should be made

sion of 5 U.S.C. 552a(i)(3). That penalty either in person at the Office of, or by

provision also appears at $ 16.13(a). In mail addressed to, the responsible Pri

order to avoid any unwarranted disclovacy Act Officer identified in Appendix sure of an individual's records, the DeA to this part. Although oral requests partment reserves the right to determay be honored, a requester may be mine to its satisfaction whether proof asked to submit his request in writing. of identity offered by any individual is The envelope containing the request adequate. and the letter itself should both clearly (2) Not in person. If the individual indicate that the subject is a PRIVACY making a request does not appear in ACT REQUEST FOR ACCESS TO person before a Privacy Act Officer, the RECORDS.

information set forth in $16.3(b)(1) and (b) When a request for access to a certificate of a notary public or records is misdirected by the requester, equivalent officer empowered to ador not addressed as specified in para minister oaths must accompany the regraph (a) of this section, the Depart

quest. The certificate within or atment official receiving same shall

tached to the letter must be substanpromptly refer it to the appropriate Privacy Act Officer and the time of re

tially in accord with the following

text: ceipt for processing purposes will be the time when it is received by that of- City of ficial.

County of (c) When a request for access to

(name of individual), records fails to provide necessary infor who affixed (his) (her) signature below in my mation as set forth in paragraph (b) of presence, came before me, a this section the requester shall be ad (title), in and for the aforesaid County and vised that the time of receipt for proc State, this

day of essing purposes will be the time when 19, and established (his) (her) identity to the additional necessary information is my satisfaction. received by the appropriate official. My

commission

expires (d) The requirements for identification of individuals seeking access to records are as follows:

(signature) (1) In person. Each individual making If the request follows inquiry under a request in person shall be required to present satisfactory proof of identity. $16.3, this should be indicated in the reThe means of proof, in the order of

quest for access in order to facilitate preference and priority, are:

processing. (i) A document bearing the individ

(3) Parents of minors and legal guardual's photograph (for example, passport ians. An individual acting as the parent or military or civilian identification of a minor or the legal guardian of the card);

individual to whom a record pertains (ii) A document bearing the individ- shall establish his or her personal idenual's signature (for example, driver's tity in the same manner prescribed in license, social security card, unemploy- either paragraph (d) (1) or (2) of this

[ocr errors]

section. In addition, such other individ- substantial interest in the determinaual shall establish his or her represent tion of the request are necessary. ative capacity of parent or legal guard (b) Grant of access—(1) Notification. ian. In the case of the parent of a An individual shall be granted access minor, the proof of identity shall be a to a record pertaining to him or her, certified or authenticated copy of the except where the provisions of $16.6 minor's birth certificate. In the case of apply. The Privacy Act Officer shall a legal guardian of an individual who notify the individual of such deterhas been declared incompetent due to mination and provide the following inphysical or mental incapacity or age formation: by a court of competent jurisdiction, (1) The methods of access, as set forth the proof of identity shall be a certified in paragraph (b)(2) of this section; or authenticated copy of the court's (ii) The place at which the record order. A parent or legal guardian may

may be inspected; act only for a living individual, not for

(iii) The earliest date on which the a decedent. A parent or legal guardian

record may be inspected and the period may be accompanied during personal

of time that the records will remain access to a record by another individ

available for inspection and/or the estiual, provided the provisions of $16.5(e) mated date by which a copy of the are satisfied. (e) When the provisions of this part mate of fees pursuant to $16.12;

record could be mailed and the estiare alleged to have the effect of imped

(iv) The fact that the individual, if he ing an individual in exercising his or her right to access, the Department

or she wishes, may be accompanied by will consider alternative suggestions

another individual during personal acfrom an individual making a request,

cess, subject to procedures set forth in regarding proof of identity and access

paragraph (e) of this section; and to records.

(v) Any additional requirements (1) An individual shall not be required

needed to grant access to a specific to state a reason or otherwise justify

record. his or her request for access to a

(2) Methods of access. The following record.

methods of access to records by an in

dividual may be available depending on $16.5 Disclosure of requested informa the circumstances of a given situation: tion to individuals.

(i) Inspection in person may be had in (a) Each request received shall be the office specified by the Privacy Act acted upon promptly by the responsible Officer granting access during hours inPrivacy Act Officer. Every effort will

dicated by the Privacy Act Officer; be made to respond within ten days (ii) Transfer of records to a Federal (excluding Saturdays, Sundays and facility more convenient to the indiholidays) of the date of receipt. If a re vidual may be arranged, but only if the sponse cannot be made within ten days Privacy Act Officer determines that a due to unusual circumstances, the Pri- suitable facility is available, that the vacy Act Officer shall send an acknowl individual's access can be properly suedgement during that period providing pervised at the facility, and that transinformation on the status of the re- mittal of the records to that facility quest and asking for such further infor will not unduly interfere with opermation as may be necessary to process ations of the Department or involve the request. Unusual circumstances shall unreasonable costs, in terms of both include circumstances where a search money and manpower; and for and collection of requested records (iii) Copies may be mailed at the refrom inactive storage, field facilities or quest of the individual, subject to payother establishments are required, ment of the fees prescribed in $16.12. cases where a voluminous amount of The Department, at its own initiative, data is involved, instances where infor may elect to provide a copy by mail, in mation on other individuals must be which case no fee will be charged the separated or expunged from the par individual. ticular record, and cases where con (c) The Department shall supply such sultations with other agencies having a other information and assistance at

« PreviousContinue »